A03138 Memo:

BILL NUMBER:A3138
TITLE OF BILL: An act to amend the public health law and the
education law, in relation to quality assurance and peer review
activities
PURPOSE OR GENERAL IDEA OF BILL: To extend the confidentiality
provisions relating to discovery of testimony to statements made by
any person in attendance at peer review committees who is a party to
an action or proceeding the subject matter of which was reviewed
during peer review committee meetings. The extension of the
confidentiality is proposed to enhance the identification and
correction of medical errors by physicians and other health care
providers to protect the public health and reduce the incidence of
avoidable medical errors.
SUMMARY OF SPECIFIC PROVISIONS: Sections 1 and 2 would amend section,
2805-m of the Public Health Law and section 6527 of the Education Law,
respectively, to extend the confidentiality provisions relating to
discovery of testimony to apply to statements made by any person in
attendance at peer review committee meetings who is a party to an
action or proceeding the subject matter of which was reviewed at such
meeting. Section 3 amends section 6530 of the education law to add
failure to reasonably cooperate with quality assurance and peer review
programs to the list of definitions of professional misconduct.
JUSTIFICATION: It is believed that incidents involving medical errors
often go undetected and are underreported because physicians and other
health care providers understand that they would potentially be
exposed to future civil actions and any statements or information
volunteered as part of the peer review process could be discovered and
used against them in later court proceedings.
The objective of the discovery exclusion is to "enhance the
objectivity of the review process" and to assure that medical peer
review committees "may frankly and objectively analyze the quality of
health services rendered." See Memorandum of Assembly Rules Committee,
Bill Jacket, L. 1971, ch. 990, at 6. The Court of Appeals stated that
"by guaranteeing confidentiality to quality review and malpractice
prevention procedures, this provision is designed to encourage
thorough and candid peer review of physicians, and thereby improve the
quality of medical care." Logue v. Velez, 92 N.Y.2d 13, 17,699 N.E.2d
365, 367 (1998).
However, both section 2805-m of the Public Health Law and section 6527
of the Education Law contain the same narrow exception that permits
disclosure of statements given at an otherwise privileged peer review
meeting by a party (medical provider) to a lawsuit which involves the
same underlying conduct that is the topic of discussion at the
meeting. Further, the courts have reinforced this exception by stating
that "the evident purpose of this provision is to permit discovery of
statements given by a physician or other professional in the course of
a hospital's review of the facts and circumstances of an earlier
incident which had given rise to a malpractice action." Logue v.
Velez, 92 N.Y.2d 13, 19,69 N.E. 2d 365, 368(1998-); see also
Swartzenberg v. Trivedi, 189 A.D.2d 151, 153 (1993), appeal dismissed,
82 N.Y.2d 749 (1993).
This exception compromises the effectiveness of the peer review
process for enhancing the quality of care and adequately detecting and
preventing medical errors:
The bill also includes a provision to encourage cooperation with peer
review by defining a failure to reasonably cooperate with quality
assurance, incident reporting, and peer review programs as a form of
professional misconduct.
Therefore, this legislation would improve the peer review process to
promote quality assurance. By providing health care providers who are
the subject of peer review proceedings confidentiality from discovery
of testimony given at such proceedings, it is expected that medical
errors will be more readily detected and addressed by increasing
providers' willingness to submit information that is necessary to
conduct properly and expeditiously peer review activities.
PRIOR LEGISLATIVE HISTORY:
2003: A 11545 - referred to Health committee
2004: A11545-A - reported to Codes committee
2005-06: A2943 - reported to Codes committee
2007-08: A6723-A - reported to Codes committee
2009-2010: A1596 - reported to Codes committee
2011-2012: A.590 - reported to Codes committee
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: Immediately.

A03138 Text:

S T A T E O F N E W Y O R K
________________________________________________________________________
3138
2013-2014 Regular Sessions
I N A S S E M B L Y
January 23, 2013
___________
Introduced by M. of A. GOTTFRIED, DINOWITZ, GALEF, PAULIN, CLARK,
JAFFEE, GUNTHER, COLTON, SCHIMEL, BOYLAND -- Multi-Sponsored by -- M.
of A. BRENNAN, COOK, JACOBS, McDONOUGH, ORTIZ, SCARBOROUGH, SWEENEY,
WEISENBERG -- read once and referred to the Committee on Health
AN ACT to amend the public health law and the education law, in relation
to quality assurance and peer review activities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 2 of section 2805-m of the public health law,
2 as amended by chapter 808 of the laws of 1987, is amended to read as
3 follows:
4 2. Notwithstanding any other provisions of law, none of the records,
5 documentation or committee actions or records required pursuant to
6 sections twenty-eight hundred five-j and twenty-eight hundred five-k of
7 this article, the reports required pursuant to section twenty-eight
8 hundred five-l of this article nor any incident reporting requirements
9 imposed upon diagnostic and treatment centers pursuant to the provisions
10 of this chapter shall be subject to disclosure under article six of the
11 public officers law or article thirty-one of the civil practice law and
12 rules, except as hereinafter provided or as provided by any other
13 provision of law. No person in attendance at a meeting of any such
14 committee shall be required to testify as to what transpired thereat.
15 [The] FURTHERMORE, THE prohibition relating to discovery of testimony
16 shall [not] apply to the statements made by any person in attendance at
17 such a meeting who is a party to an action or proceeding the subject
18 matter of which was reviewed at such meeting.
19 S 2. The closing paragraph of subdivision 3 of section 6527 of the
20 education law, as amended by chapter 257 of the laws of 1987, is amended
21 to read as follows:
22 Neither the proceedings nor the records relating to performance of a
23 medical or a quality assurance review function or participation in a
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01440-01-3
A. 3138 2
1 medical and dental malpractice prevention program nor any report
2 required by the department of health pursuant to section twenty-eight
3 hundred five-l of the public health law described herein, including the
4 investigation of an incident reported pursuant to section 29.29 of the
5 mental hygiene law, shall be subject to disclosure under article thir-
6 ty-one of the civil practice law and rules except as hereinafter
7 provided or as provided by any other provision of law. No person in
8 attendance at a meeting when a medical or a quality assurance review or
9 a medical and dental malpractice prevention program or an incident
10 reporting function described herein was performed, including the inves-
11 tigation of an incident reported pursuant to section 29.29 of the mental
12 hygiene law, shall be required to testify as to what transpired thereat.
13 [The] FURTHERMORE, THE prohibition relating to discovery of testimony
14 shall [not] apply to the statements made by any person in attendance at
15 such a meeting who is a party to an action or proceeding the subject
16 matter of which was reviewed at such meeting.
17 S 3. Section 6530 of the education law is amended by adding a new
18 subdivision 50 to read as follows:
19 50. FAILURE TO COOPERATE AND PARTICIPATE, REASONABLY AND IN GOOD
20 FAITH, IN THE QUALITY ASSURANCE, INCIDENT REPORTING, AND PEER REVIEW
21 PROGRAMS, ACTIVITIES, REQUIREMENTS AND PROCEDURES COVERED BY THE CONFI-
22 DENTIALITY PROVISIONS OF SECTION TWENTY-EIGHT HUNDRED FIVE-M OF THE
23 PUBLIC HEALTH LAW OR CLAUSE (A), (B), (D) OR (E) OF SUBDIVISION THREE OF
24 SECTION SIXTY-FIVE HUNDRED TWENTY-SEVEN OF THIS TITLE.
25 S 4. This act shall take effect immediately.